On 5 September 2017, The European Court of Human Rights (ECtHR), sitting as a Grand Chamber, released his final judgement in the case Bărbulescu v. Romania.

Summary of the case

In August 2007, Bogdan Mihai Bărbulescu’s contract of employment was terminated after a bit longer than three years working for the same company. The reason? Using ‘Yahoo! Messenger’ to communicate with his brother and wife. Mr. Bărbulescu’s employer justified its decision supported by a forty-five pages dossier containing the full transcript of these conversations, some of them sensitive in nature. Was Mr. Bărbulescu notified about the monitoring? No, and that is precisely the key for further guidance.

What are the main conclusions that companies and employees can obtain from the ruling?

1. Can employers monitor the conversations that their employees are having by using company’s resources via Messenger, Facebook, etc?

– Yes.

2. In order to monitor: does a general prohibition of ‘not using company resources for personal purposes’ suffice?

– No.

3. So, what else is needed?

–A specific notice about when the monitoring is taking place and the extent of it. The employee must be notified in advance, and the notice has to specify what is exactly being tracked: is it the content itself or other type of metrics (e.g. KPIs on applications usage, communication volumes, metadata, etc.). To this regard, The ECtHT considered a violation of Art. 8 of the European Convention on Human Rights the fact that both the County Court and the Bucharest Court of Appeal:

Omitted to determine whether the applicant had been notified in advance of the possibility that the employer might introduce monitoring measures, and of the scope and nature of such measures.

4. Should the company’s be ready to provide additional reasons for monitoring besides a written policy?

That would be on the company’s best interest. If things get to this point, the employer should be able to defend the legitimate reasons that justified actual monitoring in the case of a particular employee, and if there wasn’t available another less intrusive but viable method. At this stage, avoiding generic answers should only contribute to reinforce the employer’s position. Let’s say that the ECtHT is not a big fan of theoretical reasons:

the County Court (…) had mentioned the need to avoid the company’s IT systems being damaged, liability being incurred by the company in the event of illegal activities in cyberspace, and the company’s trade secrets being disclosed (…). However, in the Court’s view, these examples can only be seen as theoretical, since there was no suggestion that the applicant had actually exposed the company to any of those risks.

In addition, neither the County Court nor the Court of Appeal sufficiently examined whether the aim pursued by the employer could have been achieved by less intrusive methods than accessing the actual contents of the applicant’s communications.

Conclusion and dissenting opinion

In general, a well-balanced ruling. The only ‘but’? It seems that the Grand Chamber might be a bit detached from reality when it considers that merely acknowledging the violation is enough ‘reward’ for someone whose job is terminated despite of his rights not being correctly guaranteed at a national level. To this regard, we agree with Judge Karakaş’ partially dissenting opinion when he states:

I do not share the majority’s opinion that the finding of a violation constitutes sufficient just satisfaction for the non-pecuniary damage sustained by the applicant (…)

In the present case, the domestic courts did not ensure adequate protection of the applicant’s right to respect for his private life and correspondence: the applicant was seriously affected by the disciplinary proceedings against him, since he was dismissed from his post. This violation of Article 8 undoubtedly caused non-pecuniary damage to the applicant, who cannot be satisfied with the mere finding that such damage was sustained. For that reason, I was in favour of granting an award, even of a modest amount, by way of just satisfaction for the non-pecuniary damage sustained by the applicant.

See the full judgement below:

CASE OF BARBULESCU v. ROMANIA (1)

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